We should not stop dual citizens from serving our country
By Ben Mokamba
| July 19th 2019
Every minute, at least two Kenyans are born. As a matter of fact, by the time you finish reading this article, there will be at least 10 more Kenyans in existence than there are right now.
Regardless of the geographical location into which they are born, these children are considered Kenyan because they have a Kenyan parent. Experts in law will tell you that the legal principle by which this Kenyan citizenship is determined is known as ‘Jus sanguinis, Latin for ‘right of blood’.
That if one or both of your parents are Kenyan, then so are you. Legal experts will also tell you that in some countries such as the United States, citizenship is conferred automatically to babies born in that land, regardless of their parents’ citizenship.
A baby born of Kenyan parents in United States will, therefore, automatically become a dual citizen of Kenya and the United States. The baby will be a Kenyan citizen by ‘right of blood’ and a United States citizen by ‘right of soil’. They need not opt in or out. They need swear no oath nor fill out any application forms. Nobody consults them or chooses on their behalf. It is their birthright.
Picture, therefore, a baby born of Kenyan parents in the United States. Perhaps by destiny or choice, the baby spends their childhood in the United States up to the time they are a young adult. Then an inner patriotic wind starts blowing in the direction of their country Kenya, and before long, they heed the call and fly over the sea to this part of the globe.
With all the skills they may have acquired, the exposure and experience of a culture different from ours, and the ability to identify as both an ‘insider’ and ‘outsider’, it is possible such a person is beaming with immense potential.
But is such a person viewed as fully Kenyan? Are they entitled to the same opportunities as a Kenyan of the same age who was born and has been living in Kenya their entire life?
We have had to ponder about quite a similar scenario in recent days. The question of whether a dual citizen can be appointed to serve in a State office has come to the fore with the nomination of a dual citizen, Ms Mwende Mwinzi, as Kenya’s Ambassador to Seoul, South Korea. Granted, the Constitution, Article 78, states that a person is not eligible for election and appointment to a State office unless s/he is a citizen of Kenya.
However, in Clause 3, the Constitution provides an exemption to any person who has been made a citizen of another country by operation of that country’s law, without the ability to opt out. A legal expert will tell you that this is perhaps because one cannot opt out of their birthright any more than they can opt out of the family they are born into.
Opting out implies that you have an option as to whether you are a member of your family or in this case, a citizen of your country. Opting out implies that the citizenship was not automatically conferred.
The clause (3) implies that any person who has been made a citizen of another country by operation of that country’s law without ability to opt out are not prohibited from eligibility for election or appointment to a State office. Nonetheless, the more we peer into it, the more mind-boggling it seems to become.
Given that many Kenyans, including the youth, have opted to take up a second citizenship for various reasons, including marriage, work, ease of travel, property ownership, are these Kenyans any less suited to hold office in Kenya than their counterparts whose dual citizenship is by birthright?
Does our supreme law discriminate against some dual citizens while at the same time forbidding discrimination “on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth” as articulated in Article 27(4)?
The spirit of our Constitution in allowing dual citizenship was clearly not to punish and isolate but to include and appreciate all its citizens.
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